AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings WISCONSIN

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1 AMERICAN BAR ASSOCIATION Directory of Law Governing Appointment of Counsel in State Civil Proceedings WISCONSIN Copyright 2017 American Bar Association All rights reserved. American Bar Association Standing Committee on Legal Aid and Indigent Defendants 321 N. Clark Street Chicago, IL Phone: ; FAX: The materials herein may be reproduced, in whole or in part, provided that such use is for informational, noncommercial purposes only and any copy of the materials or portion thereof acknowledges original publication by the American Bar Association and includes the title of the publication, the name of the author, and the legend Copyright 2017 American Bar Association. Reprinted by permission. Requests to reproduce materials in any other manner should be addressed to: Copyrights and Contracts Department, American Bar Association, 321 N. Clark Street, Chicago, IL 60610; Phone: ; FAX: ; i

2 WISCONSIN Table of Contents Preface... 1 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 2 1. SHELTER... 2 Federal Statutes and Court Decisions Interpreting Statutes SUSTENANCE... 2 Federal Statutes and Court Decisions Interpreting Statutes SAFETY AND/OR HEALTH... 3 A. Domestic Violence Protection Order Proceedings... 3 B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings... 3 State Statutes and Court Decisions Interpreting Statutes... 3 C. Civil Commitment or Involuntary Mental Health Treatment Proceedings... 4 State Statutes and Court Decisions Interpreting Statutes... 4 Federal Court Decisions Addressing Constitutional Due Process or Equal Protection... 6 State Court Decisions Addressing Court s Inherent Authority... 6 D. Sex Offender Proceedings... 7 State Statutes and Court Decisions Interpreting Statutes... 7 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 7 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings... 8 State Statutes and Court Decisions Interpreting Statutes CHILD CUSTODY... 8 A. Appointment of Counsel for Parent State-Initiated Proceedings... 8 State Statutes and Court Decisions Interpreting Statutes... 8 Federal Statutes and Court Decisions Interpreting Statutes... 9 State Court Decisions Addressing Constitutional Due Process or Equal Protection... 9 State Court Decisions Addressing Court s Inherent Authority B. Appointment of Counsel for Parent Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Federal Statutes and Court Decisions Interpreting Statutes D. Appointment of Counsel for Child Privately Initiated Proceedings MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Constitutional Due Process or Equal Protection B. Paternity Proceedings State Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Court s Inherent Authority C. Proceedings for Judicial Bypass of Parental Consent for a Minor to Obtain an Abortion State Statutes and Court Decisions Interpreting Statutes D. Proceedings Related to Pregnant Women ii

3 State Statutes and Court Decisions Interpreting Statutes E. Juvenile Delinquency, Status Offenses, or Child in Need of Supervision Proceedings Proceedings State Statutes and Court Decisions Interpreting Statutes F. Proceedings Involving Claims by or Against Prisoners State Court Decisions Addressing Constitutional Due Process or Equal Protection State Court Decisions Addressing Court s Inherent Authority G. Municipal Proceedings State Court Decisions Addressing Constitutional Due Process or Equal Protection Law Addressing Authorization or Requirement to Appoint Counsel in Civil Proceedings Generally State Statutes and Court Decisions Interpreting Statutes Federal Statutes and Court Decisions Interpreting Statutes State Court Decisions Addressing Court s Inherent Authority iii

4 Preface Important Information to Read Before Using This Directory The ABA Directory of Law Governing Appointment of Counsel in State Civil Proceedings (Directory) is a compilation of existing statutory provisions, case law, and court rules requiring or permitting judges to appoint counsel for civil litigants. The Directory consists of 51 detailed research reports one for each state plus D.C. that present information organized by types of civil proceedings. Prior to using the Directory, please read the Introduction, at the Directory s home page, for the reasons behind the development of the Directory, the various sources of authority from which judicial powers to appoint counsel in civil proceedings may derive, and the structure used to organize information within each of the research reports. Terms of Use/Disclaimers This Directory should not be construed as providing legal advice and the ABA makes no warranties concerning the information contained therein, which has been updated to reflect the law through early The Directory does not seek to address all conceivable subsidiary issues in each jurisdiction, but some such issues were researched and addressed, including: notification of right to counsel; standards for waiver of right to counsel; standard of review on appeal for improper denial of counsel at trial; whether counsel for a child means a clientdirected attorney or a best interests attorney/attorney ad litem; and federal court decisions finding a right to counsel. Similarly, the research does not exhaustively identify all law regarding the issue of compensation of appointed counsel in each jurisdiction, though discussion of such law does appear within some of the reports. The Directory attempts to identify as unpublished any court decisions not published within an official or unofficial case reporter. Discussion of unpublished cases appears only for those jurisdictions where court rules currently permit their citation in briefs or opinions. Limitations on the use of unpublished opinions vary by jurisdiction (e.g., whether unpublished cases have value as precedent), and such limits were not exhaustively researched. Users should conduct independent, jurisdiction-specific research both to confirm whether a case is published and to familiarize themselves with all rules relating to the citation and use of unpublished or unreported cases. Acknowledgments This Directory was a multi-year project of the ABA s Standing Committee on Legal Aid and Indigent Defendants (SCLAID). We are indebted to our partner in this project, the National Coalition for a Civil Right to Counsel (NCCRC), for sharing the body of research that was adapted to form the Directory s reports. The Acknowledgments, at the Directory s home page, details additional specific contributions of the many individuals involved in this project. 1

5 Law Addressing Authorization or Requirement to Appoint Counsel in Specific Types of Civil Proceedings 1. SHELTER Federal Statutes and Court Decisions Interpreting Statutes The federal Fair Housing Act, contained within Title VIII of the Civil Rights Act of 1968, provides that [a]n aggrieved person may commence a civil action in an appropriate United States district court or State court. 42 U.S.C. 3613(a)(1)(A). Further, [u]pon application by a person alleging a discriminatory housing practice or a person against whom such a practice is alleged, the court may (1) appoint an attorney for such person. 42 U.S.C. 3613(b). 2. SUSTENANCE Federal Statutes and Court Decisions Interpreting Statutes Title VII of the Civil Rights Act of 1964 prohibits employment discrimination. While nearly all Title VII claims are brought in federal court, the U.S. Supreme Court has specified that state courts have concurrent jurisdiction with federal courts for Title VII claims. Yellow Freight System Inc. v. Donnelly, 494 U.S. 820, 826 (1990). Title VII provides that [u]pon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant. 42 U.S.C. 2000e-5(f)(1). In Poindexter v. FBI, the D.C. Court of Appeals observed: Title VII's provision for attorney appointment was not included simply as an afterthought; it is an important part of Title VII's remedial scheme, and therefore courts have an obligation to consider requests for appointment with care. In acting on such requests, courts must remain mindful that appointment of an attorney may be essential for a plaintiff to fulfill the role of a private attorney general, vindicating a policy of the highest priority. Once the plaintiff has triggered the attorney appointment provision, courts must give serious consideration to the plaintiff's request such discretionary choices are not left to a court's inclination, but to its judgment; and its judgment is to be guided by sound legal principles. Furthermore, in exercising this discretion, the court should clearly indicate its disposition of the request for appointment and its basis for that disposition. 737 F.2d 1173, (D.C. Cir. 1984). 2

6 3. SAFETY AND/OR HEALTH A. Domestic Violence Protection Order Proceedings No law could be located regarding the appointment of counsel for indigent litigants in domestic violence protection order proceedings. B. Conservatorship, Adult Guardianship, or Adult Protective Proceedings State Statutes and Court Decisions Interpreting Statutes For a hearing on a petition for protective services or protective placement under Wis. Stat. Ann , the individual sought to be protected has the right to counsel whether or not the individual is present at the hearing on the petition. Wis. Stat. Ann (4)(a). The court must require representation by full legal counsel if: (1) the petition states that the individual is not competent to refuse psychotropic medication; (2) the individual requested counsel 72 hours before the hearing; (3) the guardian ad litem or any other person states that the individual is opposed to the petition; or (4) the court determines the interests of justice require it. Wis. Stat. Ann (4)(a). See also Wis. Stat. Ann (1) (individual must be referred as soon as practicable to the state defender, who shall appoint counsel without determination of indigency); Wis. Stat. Ann (1) (at or after conclusion of proceedings, court may inquire as to the individual's ability to reimburse the state for the costs of representation by public defender and may order individual to reimburse the state). If there is a petition for transfer of an individual in protective placement and the individual, the individual s guardian ad litem, or anyone on the individual s behalf requests counsel for the hearing on the petition, the court shall refer the individual to counsel as provided under Wis. Stat. Ann Wis. Stat. Ann (7)(cm). During the annual review of a protective placement, the guardian ad litem must orally notify the individual and their guardian of their right to counsel, Wis. Stat. Ann (2)(b)(2), and, within 30 days after appointment, file with the court a written report indicating whether the individual or the individual s guardian requests or the guardian ad litem recommends that legal counsel be appointed for the individual. Wis. Stat. Ann (2)(f)(3). The court must refer the individual to legal counsel if the court determines that legal counsel is necessary or if the guardian ad litem requests it. Wis. Stat. Ann (3)(c). When a petition for guardianship is filed, the proposed ward or ward has a right to counsel if: (1) the proposed ward or ward requests counsel; (2) the guardian ad litem or another person notifies the court that the proposed ward or ward is opposed to the guardianship petition; or (3) the court determines that the interests of justice so requires. Wis. 3

7 Stat. Ann (1)(a). If the proposed ward or ward has a right to counsel pursuant to Wis. Stat. Ann (1)(a) but is unable to obtain legal counsel, the court shall appoint legal counsel for the proposed ward or ward. Wis. Stat. Ann (1)(c). Pursuant to Wis. Stat. Ann (2)(a), a ward or the ward s guardian may petition for a review of incompetency, to have the guardian discharged and a new guardian appointed, or to have the guardianship limited and specific rights restored. If such petition is filed, the court must conduct a hearing at which the ward is present, and the ward will have the right to counsel during such hearing. Wis. Stat. Ann (2)(b). 1 Notwithstanding any finding of incompetence for the ward, the ward may retain and contract for the payment of reasonable fees to an attorney, the selection of whom is subject to court approval, in connection with proceedings involving review of the terms and conditions of the guardianship, including the question of incompetence. Wis. Stat. Ann (2)(b). The court must appoint counsel if the ward is unable to obtain counsel, and if the ward is indigent, the county of jurisdiction for the guardianship must provide counsel at the county s expense. Wis. Stat. Ann (2)(b). C. Civil Commitment or Involuntary Mental Health Treatment Proceedings State Statutes and Court Decisions Interpreting Statutes Wisconsin provides the right to counsel for individuals subject to emergency detention or involuntary commitment proceedings under the State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act (also known as Chapter 51 proceedings ). See Wis. Stat. Ann (9) (Emergency detention; at time of detention, individual must be notified, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, [and] the right to have an attorney provided at public expense ); 51.20(3) (Involuntary commitment for treatment; At the time of the filing of the petition [for examination] the court shall assure that the subject individual is represented by adversary counsel by referring the individual to the state public defender, who shall appoint counsel for the individual without a determination of indigency, as provided in s ); 51.45(13)(b)(2) (Involuntary commitment; upon receipt of petition for commitment, the court must [a]ssure that the person is represented by counsel by referring the person to the state public defender, who shall appoint counsel for the person without a determination of indigency, as provided in Wisconsin Act 387 renumbered and amended Wis. Stat. Ann (2)(a) as 54.42(1)(a) and (c). The amendments deleted the requirement in (2)(a) that the alleged incompetent request full legal counsel at least 72 hours before the hearing Wisconsin Act 387 also renumbered and amended Wis. Stat. Ann (4) as 54.64(2)(b). The amendments added a provision that the ward may retain and contract for the payment of counsel, subject to the court s approval. 4

8 s The person shall be represented by counsel at the preliminary hearing under par. (d). The person may, with the approval of the court, waive his or her right to representation by counsel at the full hearing under par. (f). ); Wis. Stat ( (1) As soon as practicable after a person has been detained in connection with any civil commitment proceeding the person shall be informed of his or her right to counsel. (2)(a) Except as provided in par. (b), a person entitled to counsel under sub. (1) who indicates at any time that he or she wants to be represented by a lawyer, and who claims that he or she is not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s (1). ) Wis. Stat. Ann (1)(e) provides a right to counsel whenever: (1) any transfer of committed individuals between facilities results in a greater restriction of personal freedom for the patient; or (2) the patient is transferred from outpatient to inpatient status. In such circumstances, the patient must be informed, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s Wis. Stat. Ann (1)(e). Also, within 24 hours after: (1) any transfer resulting in a greater restriction of personal freedom for the patient for a period of more than 5 days; or (2) any transfer from outpatient to inpatient status for a period of more than 5 days where the transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment, the county department must provide written and oral notice of the patient s right to counsel. Wis. Stat. Ann (1)(e)(2). For all of the above types of Chapter 51 proceedings, whenever an adult individual has the right to counsel, the court must refer the individual as soon as practicable to the state public defender, who must appoint counsel for the individual without a determination of indigency. Wis. Stat. Ann (1)(a). An adult individual may knowingly and voluntarily waive his or her right to counsel, except in the context of preliminary hearings for involuntary commitment, as provided in 51.45(13)(b)(2). Wis. Stat. Ann (1)(b). Any child that is subject to a Chapter 51 proceeding must be represented by counsel, and the court may not grant a waiver of counsel for such proceedings. Wis. Stat. Ann (1m)(c). At or after the conclusion of a Chapter 51 proceeding for an adult individual, the court may inquire as to the individual's ability to reimburse the state for the costs of representation by the state public defender and may order the individual to reimburse the state if the court determines that the individual is able to make reimbursement for all or part of the costs of representation. Wis. Stat. Ann (1). The court may also request the state public defender to conduct a determination of indigency under , the results of which the state public defender must report to the court. Wis. Stat. Ann (1). 5

9 Upon filing a petition for involuntary administration of psychotropic medication under Wis. Stat. Ann , the court shall make a referral for appointment of legal counsel as provided under Wis. Stat. Ann (i.e., as soon as practicable to the state public defender, who shall appoint counsel for the individual under s without a determination of indigency ). Wis. Stat. Ann (7). During the annual review of involuntary administration of psychotropic medication, the guardian ad litem must orally notify the individual and his or her guardian of the individual s right to appointment of counsel under 55.19(3)(c). Wis. Stat. Ann (2)(b)(2). In addition, within 30 days after appointment, the guardian ad litem must file a written report with the court indicating whether the individual or the individual s guardian requests or the guardian ad litem recommends that legal counsel be appointed for the individual. Wis. Stat. Ann (2)(f)(3). The court must refer the individual to legal counsel if: (i) the court determines that legal counsel is necessary; or (ii) if the individual or the individual s guardian or guardian ad litem so requests. Wis. Stat. Ann (3)(c). Wis. Stat. Ann governs appointment of counsel for minors subject to proceedings under Chapter 938 of the Wisconsin Statutes (the Juvenile Justice Code ). Wis. Stat. Ann (1) defines the applicable situations, including not only delinquency but also some situations where the minor might be in some danger due to mental health or other issues. If a juvenile has a right to counsel or the court appoints one in its discretion and such counsel is not knowingly and voluntarily waived, the court shall refer the juvenile to the public defender and counsel must be appointed by the public defender without a determination of indigency. Wis. Stat. Ann (4). Federal Court Decisions Addressing Constitutional Due Process or Equal Protection In Lessard v. Schmidt, 349 F.Supp (E.D. Wis. 1972), vacated and remanded on procedural grounds, 414 U.S. 473 (1974), reinstated, 413 F. Supp (E.D. Wis. 1976), a federal court found a constitutional right to appointed counsel for Wisconsin civil commitment proceedings and, rejecting the contention the appointment of a guardian ad litem could adequately protect the due process rights of the person to be committed, held that a person detained on ground of mental illness has a right to counsel, and to appointed counsel if the individual is indigent. 349 F.Supp. at In so holding, the court relied on other federal court decisions and noted also that [t]he importance of counsel has [ ] been stressed in the American Bar Foundation report on the mentally ill. Id. at State Court Decisions Addressing Court s Inherent Authority In State ex rel. Chiarkas v. Skow, the Wisconsin Supreme Court held that the circuit court s inherent and statutory authority to appoint counsel for litigants did not include the 6

10 authority to require the county public defender s office to provide representation for all respondents, including non-indigent individuals, in all civil commitment proceedings where such authority was not in the statute. 465 N.W.2d 625, 626 (Wis. 1991). 2 The Chiarkas court found it was not in the best interests of the judicial system to routinely order public defenders to represent non-indigent individuals when the enabling legislation did not require such representation and the public defender had been created to provide limited services and represent indigent individuals. Chiarkas, 465 N.W.2d at Instead, the court held that the circuit court had authority to appoint the public defender to represent non-indigent individuals only in rare and unusual circumstances where other counsel was not available. Id. at The court added that where a court is forced to appoint the public defender or private counsel for a non-indigent individual, the responsibility for payment in such cases rests with the county. Id at D. Sex Offender Proceedings State Statutes and Court Decisions Interpreting Statutes Wis. Stat. Ann (2)(a) provides a right to counsel for any hearing related to commitment of sexually violent persons, [e]xcept as provided in (2) [refusal to participate in examination] and [petition for discharge]. If the person claims or appears to be indigent, the court must refer the person to the authority for indigency determinations under (1) and, if applicable, the appointment of counsel. Wis. Stat. Ann (2)(a). State Court Decisions Addressing Constitutional Due Process or Equal Protection In State ex rel. Seibert v. Macht, the Wisconsin Supreme Court found that a person adjudicated to be sexually dangerous had a right to appointed counsel in their by-right appeal (as previously discussed, there is a statutory right to appointed counsel for the trial). 627 N.W.2d 881, (Wis. 2001). The court relied upon the U.S. Supreme Court s decision in Douglas v. California, 372 U.S. 353, (1963), which had held that states providing a byright appeal in criminal cases had to provide appointed counsel for that appeal, and the Seibert 2 The version of Wis. Stat (3) at that time stated: At the time of the filing of the petition the court shall assure that the subject individual is represented by adversary counsel. If the individual claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations specified under s (1). 3 Subsequent to Chiarkas, 51.20(3) was amended such that it now states: "At the time of the filing of the petition the court shall assure that the subject individual is represented by adversary counsel by referring the individual to the state public defender, who shall appoint counsel for the individual without a determination of indigency, as provided in s Wis. Stat (3). This negates the issue raised in Chiarkas. 7

11 court went on to hold, [a]lthough a sexually violent person, committed under [Wis. Stat. 980], is not a criminal defendant, he or she has the same constitutional rights as a criminal defendant. [ ] It therefore follows that an individual committed under Chapter 980 has a constitutional right of counsel in bringing his or her first appeal as of right, emanating from both the Fourteenth Amendment's Equal Protection Clause and Due Process Clause as well as the Sixth Amendment's right of counsel. Id. at (internal citation omitted). 4 E. Involuntary Quarantine, Inoculation, or Sterilization Proceedings State Statutes and Court Decisions Interpreting Statutes An individual who is subject to a petition for confinement for infectious tuberculosis has the right to be represented by adversary counsel. Wis. Stat. Ann (9)(d). At the time of the filing of the petition the court shall assure that the individual... is represented by adversary counsel and [i]f the individual claims or appears to be indigent, the court shall refer the individual to the authority for indigency determinations under (1). Id. 4. CHILD CUSTODY A. Appointment of Counsel for Parent State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes While Wis. Stat. Ann (3) expressly prohibits the use of judicial discretion to appoint counsel for any parties other than children in a child in need of protection or services ( CHIPS ) proceeding under 48.13, 5 in Joni B. v. State, 549 N.W.2d 411, (Wis. 1996), the Wisconsin Supreme Court found this prohibition violative of both the Due Process Clause of the U.S. Constitution and Wisconsin s separation of powers doctrine. Parents have a right to counsel in proceedings under the Children s Code involving the involuntary termination of parental rights. Wis. Stat. Ann (2)(b). For parents over the age of 18, if the parent is: (i) entitled to representation by counsel pursuant to 48.23(2), (2g) or (2m); (ii) counsel is not knowingly and voluntarily waived; and (iii) it appears that the parent is unable to afford counsel in full or if the parent so indicates to the court, the court must refer 4 Note that this wording was changed slightly on reconsideration. See State ex rel. Seibert v. Macht, 639 N.W.2d 707 (Wis. 2002) (mem.). 5 Note, however, that an Indian juvenile s parent or Indian custodian has the right to counsel if the juvenile is the subject of a proceeding under [Wis. Stat. Ann (4), (6), (6m) or (7)] involving the removal of the Indian juvenile from the home of his or her parent or Indian custodian or the placement of the Indian juvenile in an outof-home care placement. Wis. Stat. Ann (2g). 8

12 the parent to the authority for indigency determinations under (1). Wis. Stat. Ann (4). In any other situation under in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay. Id. Parents subject to a petition of termination of parental rights under or must be notified of their right to counsel in the summons, or if the parent cannot be served, through constructive notice. Wis. Stat. Ann (3)(b), 48.42(4)(c)(2). This statutory right to counsel includes the right to effective assistance of counsel, In the Interest of M.D.(S)., 485 N.W.2d 52, 54 (Wis. 1992), and protects even parents who fail to show for most proceedings and to communicate with their appointed attorney. See In re Torrance P., Jr., 724 N.W.2d 623, (Wis. 2006) (trial court erred in refusing to allow appointed attorney to participate after court held parent in default for failing to show for hearing pursuant to court order). Federal Statutes and Court Decisions Interpreting Statutes The federal Indian Child Welfare Act ( ICWA ), which governs any involuntary child custody proceedings in state court involving an Indian child, 6 provides: In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. [ ] Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 25 U.S.C. 1912(b). State Court Decisions Addressing Constitutional Due Process or Equal Protection In Joni B. v. State, 549 N.W.2d 411 (Wis. 1996), the Wisconsin Supreme Court considered the constitutionality of a Wisconsin statute that barred circuit court judges from appointing counsel for the parents in certain child protection proceedings. Turning to the 6 While the ICWA does not appear to have a definitive statement about jurisdiction, 25 U.S.C. 1912(b) refers to state law not providing for appointment of counsel. Additionally, 25 U.S.C. 1912(a) states: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. These provisions, plus the fact that child welfare proceedings typically occur in state court, suggest that ICWA applies in state law proceedings. 9

13 federal due process issue (the petitioners apparently did not raise the state due process clause), the court noted that parents do not have a constitutionally protected right to counsel in all child protective hearings because [t]he precedent is clear. Both the United States Supreme Court in Lassiter and this court in Piper found that there is no absolute right to the appointment of counsel in civil cases carrying no threat of loss of physical freedom. 549 N.W.2d at (citing Lassiter v. Department of Social Services, 452 U.S. 18, (1981); Piper v. Popp, 482 N.W.2d 353 (Wis. 1992). However, pursuant to Lassiter, fundamental fairness requires that a circuit judge be given the discretion to make the determination of what due process requires on a case-by-case basis. Joni B., 549 N.W.2d at 417 (citing Lassiter, 452 U.S. at 31-32; Piper, 482 N.W.2d at ). The court concluded that a circuit court should only appoint counsel after concluding that either the efficient administration of justice warrants it or that due process considerations outweigh the presumption against such an appointment. Id. at The court added that when a circuit court either grants or denies a request for counsel, it should memorialize its findings and rationale on the record to facilitate appellate review. Id. at 418. The Wisconsin Court of Appeals has sought to clarify the responsibilities of trial courts under Joni B. One such case, In re Xena X.D.-C., 617 N.W.2d 894 (Wis. Ct. App. 2000), involved a child protection hearing in juvenile court where the mother repeatedly requested counsel. Evidence presented to the underlying juvenile court suggested that the mother was psychologically unstable. Id. at 896. The juvenile court judge told her that she could retain counsel but that the public defender would not provide representation for her. Id. at The Wisconsin Court of Appeals held that this sort of response to a request for counsel was not adequate under Joni B. Id. at Instead, when the parent requests counsel or when the circumstances otherwise raise a reasonable concern that the parent will not be able to provide meaningful self-representation, the court must exercise the discretion conferred by Joni B. and determine whether or not it is necessary to appoint counsel. Id. (emphasis added). State Court Decisions Addressing Court s Inherent Authority In Joni B., discussed supra, the Wisconsin Supreme Court rejected a state statute barring judges from appointing counsel in certain child protection cases on superintending authority grounds, holding that the law clearly intrudes upon the authority of the judiciary, as well as unreasonably burdens and substantially interferes with the judicial branch s inherent power to appoint counsel in order to effect the efficient administration of justice. 549 N.W.2d at 414. The court explained that a court s inherent power to appoint counsel does not derive from an individual litigant s constitutional right to counsel, but rather is inherent to serve the interests of the circuit court in furtherance of the court s need for the orderly and fair presentation of a case. Id. However, although the individual may lack a constitutional right to counsel, due process may require it in particular instances and [t]herefore the circuit court must have the ability to make an individualized determination as to whether the facts of the 10

14 case before it necessitates the appointment of counsel. Id. at 415. The court further explained that to determine whether due process requires that counsel must be appointed in a given situation, the circuit court must determine what constitutes a meaningful opportunity to be heard and whether that requires appointment of counsel in the particular instance. Id. n.7 (citing Lassiter, 452 U.S. at 31-32; Piper, 482 N.W.2d at ). In In re Xena X.D.-C., discussed supra, the Wisconsin Court of Appeals noted that the juvenile court, in determining whether a parent requires court-appointed counsel, can look to, in addition to any other relevant criteria, the factors set out in Joni B, which are: - the personal characteristics of the parent, such as age, mental capacity, education, and former contact with the court; - the parent's demonstrated level of interest in the proceedings and desire to participate; - whether the petition alleges incidents of abuse or neglect which could lead to criminal prosecution; - the complexity of the case, including the likelihood of the introduction of medical or psychological evidence; - the probability of out-of-home placement and potential duration of separation, based on the allegations in the petition and the social worker's recommendation. 617 N.W.2d at 899 n.4, 901 n.7 (citing Joni B., 549 N.W.2d at 418). The court also stated that, in a criminal setting, a court looks to factors such as the defendant s education, literacy, fluency in English, and any physical or psychological disability which may significantly affect his or her ability to communicate a defense, and that such a determination should not prevent persons of average ability and intelligence from representing themselves[.] In re Xena X.D.-C., 617 N.W.2d at 901 n.7 (quoting State v. Klessig, 564 N.W.2d 716, 724 (Wis. 1997)) (internal quotation marks omitted). In In re Adra B., 610 N.W.2d 144 (Wis. Ct. App. 2000), the Wisconsin Court of Appeals reversed the circuit court s discretionary decision to terminate, on an appeal of a CHIPS proceeding, an inmate father s appointed counsel (which the court had initially appointed pursuant to its inherent authority under Joni B.). In so holding, the Court of Appeals emphasized that the court s exercise of discretion with regard to the appointment of counsel is more than an unexplained choice between alternatives, [ ] but contemplates a reasoning process which considers the applicable law and the facts of record, leading to a conclusion that a reasonable judge could reach. Id. at 146 (internal citations and quotation marks omitted). Adhering to the rule that where a discretionary decision rests upon an error of law, the decision exceeds the limits of the court s discretion, the court concluded that the circuit court s termination of the inmate father s appointed counsel was an erroneous exercise of 11

15 discretion because the court, by basing its decision on an erroneous view of Wis. Stat (4), did not exercise discretion in the manner contemplated by the supreme court in Joni B. Id. at B. Appointment of Counsel for Parent Privately Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Parents have a right to counsel in proceedings under the Children s Code involving contested adoptions. Wis. Stat. Ann (2)(b). In these proceedings, parents under the age of 18 may not waive their right to counsel, but parents over the age of 18 may waive the right if the court is satisfied that the waiver is knowingly and voluntarily made. Wis. Stat. Ann (2)(b)(1), 48.23(2)(b)(2). For parents over the age of 18, if the parent is: (i) entitled to representation by counsel pursuant to 48.23(2), (2g) or (2m); (ii) counsel is not knowingly and voluntarily waived; and (iii) it appears that the parent is unable to afford counsel or if the parent so indicates to the court, the court must refer the parent to the authority for indigency determinations under Wis. Stat. Ann (1). Wis. Stat. Ann (4). In any other situation under this section in which a person has a right to be represented by counsel or is provided counsel at the discretion of the court, competent and independent counsel shall be provided and reimbursed in any manner suitable to the court regardless of the person's ability to pay Wis. Stat. Ann (4). This statutory right to counsel includes the right to effective assistance of counsel, In the Interest of M.D.(S)., 485 N.W.2d at 54, and protects even parents who fail to show for most proceedings and to communicate with their appointed attorney. See In re Torrance P., Jr., 724 N.W.2d at C. Appointment of Counsel for Child State-Initiated Proceedings State Statutes and Court Decisions Interpreting Statutes Except as listed under 48.23(1m)(b)(2), children subject to CHIPS proceedings under may be represented by counsel at the discretion of the court and a child 15 years of age or older may waive counsel in the court is satisfied such waiver is knowingly and voluntarily made and the court accepts the waiver. Wis. Stat. Ann (1m)(b)(1). Under Wis. Stat. Ann (1m)(b)(2), a child subject to a CHIPS proceeding must be represented by counsel in the following circumstances: 1. If the petition is contested, the court may not place the child outside his or her home unless the child is represented by counsel at the fact-finding hearing and subsequent proceedings. 12

16 2. If the petition is not contested, the court may not place the child outside his or her home unless the child is represented by counsel at the hearing at which the placement is made. For a child under 12 years of age, the judge may appoint a guardian ad litem instead of counsel. In Dunn Cnty. HHS v. C.R.R. (In re A.M.R.), No. 2015AP1771, 880 N.W.2d 183, (Wis. Ct. App. Apr. 13, 2016), the court held that the mandatory child counsel appointment provisions of 48.23(1m) apply only to CHIPS proceedings, not termination of parental rights proceedings; for the latter, children are only entitled to a guardian ad litem (who must be an attorney). These statutory rights to counsel include the right to effective assistance of counsel. See In the Interest of M.D.(S)., 485 N.W.2d at 54. Federal Statutes and Court Decisions Interpreting Statutes The ICWA, discussed supra Part 4.A, which governs involuntary child custody proceedings in state court involving an Indian child, 7 provides the following with regard to any removal, placement, or termination of parental rights proceeding: The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title. 25 U.S.C. 1912(b). Under the federal Child Abuse Prevention and Treatment Act ( CAPTA ), the Secretary may, for purposes of assisting the States in improving the child protective services system of each such State, provide grants to states for child abuse or neglect prevention and treatment programs. 42 U.S.C. 5106a(a). To be eligible to receive such a grant, a state must submit to the secretary a plan that specifies the areas of the child protective services system that the State will address with amounts received under the grant. 42 U.S.C. 5106a(b)(1)(A). The plan must contain a description of the activities that the State will carry out using amounts received under the grant, including: [A]n assurance in the form of a certification by the Governor of the State that the State has in effect and is enforcing a State law, or has in effect and is operating a statewide program, relating to child abuse and neglect that includes provisions 7 See supra n.7. 13

17 and procedures requiring that in every case involving a victim of child abuse or neglect which results in a judicial proceeding, a guardian ad litem, who has received training appropriate to the role, including training in early childhood, child, and adolescent development, and who may be an attorney or a court appointed special advocate who has received training appropriate to that role (or both), shall be appointed to represent the child in such proceedings. 42 U.S.C. 5106a(b)(2)(B). D. Appointment of Counsel for Child Privately Initiated Proceedings In both voluntary and involuntary termination of parental rights proceedings, the court must appoint a guardian ad litem for any child who is the subject of a contested adoption proceeding. Wis. Stat (1)(c). However, [i]f the guardian ad litem determines that the best interests of the [child] are substantially inconsistent with the wishes of that [child], the guardian ad litem shall so inform the court and the court may appoint counsel to represent that [child]. Wis. Stat (3). 5. MISCELLANEOUS A. Civil Contempt Proceedings State Statutes and Court Decisions Interpreting Statutes Wis. Stat. Ann (6)(b) provides that [t]he state public defender may not provide legal services or assign counsel for a person subject to contempt of court proceedings under or for failure to pay child or family support if any of the following applies: i. The action is not brought by the state, its delegate under 59.53(6)(a) or an attorney appointed under (1)(c); or ii. The judge or circuit court commissioner before whom the proceedings shall be held certifies to the state public defender that the person will not be incarcerated if he or she is found in contempt of court. The statute does not say definitively whether or not defendants have a right to counsel in civil contempt cases, but rather says that the state public defender s office cannot represent defendants unless the state is the plaintiff and the defendant possibly faces incarceration. Wis. Stat. Ann (6)(b). 14

18 In Brotzman v. Brotzman, 283 N.W.2d 600 (Wis. Ct. App. 1979), the Wisconsin Court of Appeals reversed the circuit court s denial of an indigent defendant s motion for appointment of counsel in a civil contempt action initiated by the district attorney. The circuit court, despite finding that the defendant was indigent, had denied the motion and found that the defendant had no constitutional or statutory right to court-appointed counsel. Id. at 601. The Court of Appeals held that because the state was exercising its police power to threaten an individual s liberty and [t]he defendant may be incarcerated if he is found in contempt, the defendant was entitled to counsel regardless of his ability to pay. Id. at 602. As such, [u]nder the provisions which phase in the state public defender system, the court should have informed [defendant] of his right to counsel[,] and [u]pon find the defendant was indigent, in the absence of an available representative of the state public defender or waiver by the defendant, the court should have assigned counsel for the defendant. Id. In so holding, the Court of Appeals cited to Wis. Stat. Ann , which currently reads: "As soon as practicable after a person has been detained or arrested in connection with any offense that is punishable by incarceration, or in connection with any civil commitment proceeding, or in any other situation in which a person is entitled to counsel regardless of ability to pay under the constitution or laws of the United States or this state, the person shall be informed of his or her right to counsel. It is unclear whether had the same language in 1979 as it does now. State Court Decisions Addressing Constitutional Due Process or Equal Protection The Wisconsin Supreme Court has held that individuals are entitled to appointed counsel in a remedial contempt proceeding where the threat to liberty is real, and when the state is a party to the action. State v. Pultz, 556 N.W.2d 708, 715 (Wis. 1996) (indigent individual entitled to appointed counsel when an arm of government brings a motion for a remedial contempt hearing against an individual, and that person's liberty is threatened ). Pultz confirmed its pre-lassiter 8 holding from Ferris v. State, 249 N.W.2d 789, 791 (Wis. 1977) (finding right to counsel in contempt proceeding and holding that, absent a knowing and intelligent waiver of counsel, defendant must be advised of right to counsel prior to contempt hearing), and rejected the state s contention that Lassiter had negated Ferris as well as the state s invitation to adopt a case-by-case test, noting that an indigent defendant may not even have the keys if he is not presently able to comply with the forfeiture requirement. Pultz, 556 N.W.2d at 714 n.11. The court did not state which constitution it was addressing, although it said the litigant was arguing that under decisions of both the United States Supreme Court and this court, indigent civil litigants are entitled to the assistance of appointed counsel when they face the prospect of incarceration. Id. at Note that the holding in Pultz was 8 Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1982), discussed supra Part 4.A. 9 See also State ex rel. Memmel v. Mundy, 249 N.W.2d 573, 576 (Wis. 1977) (relying on federal decisions and noting that [a]t least as to indigents involved in[involuntary commitment proceedings under the State Mental Health Act], it is a constitutional requirement that legal representation be provided for the person whose 15

19 specifically premised on an arm of government bring[ing] a motion for remedial contempt, which is distinguishable from cases involving civil contempt proceedings related to matters initiated by private litigants. See, e.g., Turner v. Rogers, 564 U.S. 431, 448 (2011) (Fourteenth Amendment does not automatically require the provision of counsel at civil contempt proceedings to an indigent individual subject to a child support order, even if that individual faces incarceration, particularly where the opposing parent is not represented by counsel and the State provides alternative procedural safeguards[.] ) (emphasis in original). In Sheppard v. Sheppard, 2017 Wisc. App. LEXIS 541 (Wisc. App. 2017) (unpublished), 10 the Court of Appeals rejected the application of Pultz to a civil contempt proceeding relating to a mother who failed to return her child to the state, since the contempt was between two parties and the State was not a party. The court also stated that creating a new, bright-line rule requiring appointment of counsel in all civil contempt proceedings where the alleged contemnor's physical liberty is threatened is clearly inconsistent with the recent United States Supreme Court decision in Turner v. Rogers. And the court found she was not entitled to counsel under the case-by-case due process test because Sarah concedes that she violated the order; that much was never really in doubt. As to her assertion that she was unable to comply, this issue is not so complex that Sarah can fairly be represented only by a trained advocate." See Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Sarah's task to avoid being found in contempt was merely "to offer some satisfactory explanation" for her admitted failure to comply. See Balistrieri, 55 Wis. 2d at 523 (citation omitted). The issues here are simple. She can communicate her financial situation to the court without specialized counsel. She can relay her safety or other fears without counsel. And she can make arrangements and show a willingness to transfer her child back to Wisconsin without counsel. The risk of an erroneous deprivation of liberty is quite small. As the circuit court found, it appears that Sarah simply does not want to comply with the court's order. commitment is sought ). The fact that the Memmel court relied entirely on federal decisions makes it likely that this was a decision based on the Fourteenth Amendment of the U.S. Constitution, as opposed to the Wisconsin constitution s due process clause. 10 Pursuant to Wis. Stat (3)(b), an unpublished opinion issued on or after July 1, 2009, that is authored by a member of a three-judge panel or by a single judge under s (2) may be cited for its persuasive value. A per curiam opinion, memorandum opinion, summary disposition order, or other order is not an authored opinion for purposes of this subsection. In turn, Wis. Stat (2) refers to the following types of cases: (a) Cases under ch. 799 [small claims]; (b) Municipal ordinance violation cases; (c) Cases involving violations of traffic regulations, as defined in s (1) (b), or nonmoving traffic violations, as defined in s (1), and cases under s and ch. 351; (d) Cases under chs. 51 [State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act] and 55 [Protective Service System]; (e) Cases under chs. 48 [Children s Code] and 938 [Juvenile Justice Code]; (f) Misdemeanors; (g) Cases involving civil forfeitures; (h) Cases involving contempt of court under ch